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Legal definition of a "Wobbler" in California law

A "wobbler" is a crime that can be punished as either a felony or a misdemeanor in California.1 In most cases, it is the prosecutor who decides whether to charge a wobbler as a felony or a misdemeanor.

A "wobbler" is a crime that can be punished as either a California felony or a California misdemeanor

1. What is a California “wobbler” offense?

A "wobbler" is a crime that can be punished as either a California felony or a California misdemeanor. Usually, the choice is made by the prosecutor at the time of charging the offense.

The choice is important because California law recognizes three categories of offenses. From most to least serious they are:

Felonies,

Misdemeanors, and

Infractions. 4

Some crimes can only be punished as a felony. These are known as “straight felonies.”

But California law allows prosecutors and judges to charge some crimes as either a felony or a misdemeanor.5 These are the so-called "wobbler" crimes. They are also known "alternative felony/misdemeanor offenses.”

There are also offenses that “wobble” between being a misdemeanor or an infraction.6 These misdemeanor/infraction “woblettes” are discussed in section 7, below.

2. When can a “wobbler” be reduced from a felony to a misdemeanor?

There are four stages at which a California wobbler crime can be reduced to a misdemeanor:

Provided the defendant was not sentenced to prison, after the defendant has completed California felony (formal) probation and filed a petition to reduce a California felony conviction to a misdemeanor.7

Note that unlike a wobbler, a “straight” felony cannot later be reduced to a misdemeanor.

3. How does a prosecutor decide how to charge a crime?

California law does not set forth standards for how a prosecutor should charge a wobbler. The decision remains within the prosecutor's discretion.

An infraction is a non-criminal offense that can be punished by a fine but no jail time

7. California misdemeanor/infraction “wobblettes”

7.1. What is a “wobblette”?

A “wobblette” is a California offense that can be charged or sentenced as either a misdemeanor or an infraction.

An infraction is a non-criminal offense that can be punished by a fine, but no jail time.14 In California, most infractions are punishable by a fine of up to $250.15

Most California misdemeanors, on the other hand, can be punished by:

Up to six (6) months in jail, and/or

A fine of up to $1,000.16

In most respects, wobblettes operate in the same way as wobblers. The charge can be reduced to an infraction either:

By the prosecutor at the time of charging, or

By a judge during sentencing.17

7.2 Defendants must agree to a wobblette being charged as a misdemeanor

There is one important difference between a wobbler and a wobblette in California. Before a wobblette can be charged as an infraction, the defendant must consent.18

The reason is that a person charged with an infraction is not entitled to a trial by jury.19 Nor is he or she entitled to a public defender (unless held in custody).20

Most people will agree to be charged with an infraction and pay a small fine. But some defendants may prefer to be charged with a misdemeanor.

This is because a misdemeanor can often be punished by a jail sentence instead of a fine. So someone who has served jail time on a related charge may prefer to be sentenced to time served rather than having to pay a fine.

Charged with a “wobbler”? Call us for help…

Call us for help

If you have been charged with a California wobbler offense, we invite you to contact us for a free consultation.

Call us at 855-JUSTICE to talk to a lawyer about the best legal defenses to your California wobbler crime.

We have local offices throughout the state, including in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Central California and the Bay area.

Legal references:

California Penal Code 17(b) PC: “When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:

(1) After a judgment imposing a punishment other than imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170.

(2) When the court, upon committing the defendant to the Division of Juvenile Justice, designates the offense to be a misdemeanor.

(3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on the application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.

(4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of his or her arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint.

(5) When, at or before the preliminary examination or prior to filing an order pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.”

Same.

Penal Code 17(d) PC: “A violation of any code section listed in Section 19.8 is an infraction subject to the procedures described in Sections 19.6 and 19.7 when:

(1) The prosecutor files a complaint charging the offense as an infraction unless the defendant, at the time he or she is arraigned, after being informed of his or her rights, elects to have the case proceed as a misdemeanor, or;

(2) The court, with the consent of the defendant, determines that the offense is an infraction in which event the case shall proceed as if the defendant had been arraigned on an infraction complaint.”

See also Penal Code 19.8(a) PC: “(a) The following offenses are subject to subdivision (d) of Section 17: Penal Code 193.8, 330, 415, 485, 490.7, 555, 602.13, and 853.7 of this code; subdivision (c) of Section 532b, and subdivision (o) of Section 602 of this code; subdivision (b) of Section 25658 and Sections 21672, 25661, and 25662 of the Business and Professions Code; Section 27204 of the Government Code; subdivision (c) of Section 23109 and Sections 5201.1, 12500, 14601.1, 27150.1, 40508, and 42005 of the Vehicle Code, and any other offense that the Legislature makes subject to subdivision (d) of Section 17. Except where a lesser maximum fine is expressly provided for a violation of those sections, a violation that is an infraction is punishable by a fine not exceeding two hundred fifty dollars ($250).”

Penal Code 17(a) PC: “A felony is a crime that is punishable with death, by imprisonment in the state prison, or notwithstanding any other provision of law, by imprisonment in a county jail under the provisions of subdivision (h) of Section 1170. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions.”

See People v. Statum (2002) 88 Cal. App. 4th 1181 (“An alternative felony/misdemeanor, also known as a "wobbler," is deemed a felony unless charged as a misdemeanor by the People or reduced to a misdemeanor by the sentencing court under Penal Code section 17, subdivision (b). [citation omitted]”).

See also People v. Camarillo (2000) 101 Cal. Rptr. 2d 618, 84 Cal. App. 4th 1386 (“Case law under Penal Code section 17 generally provides that, unless there is some specific statutory provision to the contrary, a court has discretion to declare that a "wobbler" offense is a misdemeanor, and such a declaration precludes its use as a prior felony conviction in a subsequent prosecution. [citations omitted]”).

Penal Code 19 PC: “Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.”

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